Breaking news: Prop 8 ballot title, summary to remain

NEWS

by Seth Hemmelgarn

A Sacramento Superior Court judge Friday denied a petition
to have Proposition 8's ballot title and summary changed from "eliminates
right of same-sex couples to marry."

Prop 8 proponents had argued that the title and summary
prepared by Attorney General Jerry Brown "differs radically from the
circulating title and summary, swapping 'Limit on marriage'" for the
current language, "so as to be extremely argumentative and create
prejudice against the measure."

However, in his tentative ruling, Judge Timothy M. Frawley
said, "The title and summary is not false or misleading because it states
that Proposition 8 would 'eliminate the right of same-sex couples to marry' in
California. The California Supreme Court unequivocally held [in a May 15
decision] that same-sex couples have a constitutional right to marry under the
California Constitution."

"It is undisputed that if Proposition 8 is approved,
marriage would be limited to individuals of the opposite sex, and individuals
of the same sex would no longer have the right to marry in California,"
the ruling said.

The Prop 8 campaign and ProtectMarriage.com, a group backing the measure,
will seek an appeal today, according to a statement.

“The language in the ballot title and summary for Proposition 8 is
argumentative and seeks to negatively affect voters,” said Andrew Pugno,
legal counsel for Prop 8, in the statement. “Since the superior court would
not exercise its authority to protect voters against misleading language, we
will ask the appellate court to do so.”

Backers of Prop 8 had filed the lawsuit over the title and
summary July 29.

Geoff Kors, executive director of Equality California, a group that's part
of the No on 8 – Equality for All coalition leading efforts to defeat Prop
8, said, "We're pleased that the judge upheld the title and summary, which
describes the key thing this would do ... change the constitution to eliminate
the right of same-couples to marry. The proponents don't want voters to know
that."

Frawley also ordered softening language in other parts of
the ballot measure that had been the subject of a lawsuit by Prop 8 opponents,
also filed July 29.

Brown issued a statement in response to the ruling that said, "This lawsuit was more about politics than the law. The court properly dismissed it."

As proposed, language in the proposed argument in favor of
Prop 8 said, "In health education classes, state law requires teachers to
instruct children as young as kindergarteners about marriage ... If the gay
marriage ruling is not overturned, teachers will be required to teach young
children there is no difference between gay marriage and traditional marriage.

"We should not accept a court decision that results in
public schools teaching our kids that gay marriage is okay," the argument
states.

Frawley ruled that that passage should be changed to "State
law may require teachers to instruct children as young as kindergarteners about
marriage ... If the gay marriage ruling is not overturned, teachers could be
required to teach young children there is no difference between gay marriage
and traditional marriage.

"We should not accept a court decision that may results
in public schools teaching our kids that gay marriage is okay."

In his ruling, Frawley said, "As petitioners have
established, current state law does not require school districts to teach
anything about marriage or same-sex marriage at any grade level. Moreover, for
those school districts that choose to include instruction about marriage as
part of a health education curriculum, Education Code [section] 51240 requires
that they allow parents to excuse their children from any such instruction
conflicting with the parents' religious or moral convictions."

Frawley also ruled that Prop 8 supporters' argument that the
measure doesn't take away "any rights" from same-sex couples is false
and misleading.

"The California Supreme Court held that same-sex
couples have a constitutional right to marry under the California Constitution
... Proposition 8 would take away that right," he wrote.

However, he said in his ruling, "Because Proposition 8
would not take away any of the substantive rights or benefits afforded under
existing domestic partnership legislation, the argument simply needs to be
amended to provide that Proposition 8 doesn't take away any rights or benefits
from gay or lesbian domestic 'partnerships' (rather than 'partners')."

Frawley also chimed in on the measure's potential effect on couples who have already married.

The judge ruled that the statement that same-sex marriages will be invalid "regardless of when or where performed" if Prop 8 passes is not "conclusively and objectively false or misleading."

"Even if this court is inclined to agree that the 'better view' is that the initiative, if passed, will not be given retroactive effect, it is not the role of this court to decide that issue in the context of an emergency election writ heard on shortened notice ... Because the question of retroactivity is unclear and subject to dispute, the statement is not "conclusively and objectively" untrue," Frawley stated in his ruling.

Brown has indicated he thinks that same-sex couples who have married since June 16 would not be affected by the passage of Prop 8.